10% Contributory Negligence as a Matter of Law?

The Louisiana Supreme Court this week overturned a jury’s verdict in a sidewalk slip and fall case. The court found that, as a matter of law, the defect on the sidewalk did not present an unreasonable risk of harm.

For slip and fall cases, plaintiffs’ lawyers want the story to begin in a good way. This one does: “Plaintiff was walking home from church when….” As she was walking, Plaintiff slipped and fell on a section of sidewalk and sustained a comminuted fracture of the radius of her right arm.

The sidewalk ran into a driveway. Two sections had become, or were installed, depressed in relation to the rest of the sidewalk . So they sat a few inches lower than the remaining sidewalk. The elevation change was approximately one-and-one-quarter to one-and-one-half inch in addition to the elevation change created by the depression.

In a bench trial, the municipality was found by the judge to be 100 percent at fault for the accident. Plaintiff was awarded $346,214.39 in damages: She had $56,616.17 in past and future medical expenses, and about $57,000 in past and future – mostly future – lost wages.

The Third Circuit Court of Appeals of Louisiana affirmed the portion of the trial court’s ruling that provided that the elevated differential created an unreasonable risk of harm, but it amended the judgment to attribute 10 percent fault to plaintiff. I find this pretty bizarre. As the court points out, the allocation of fault is not an exact science but, instead, is the search for an acceptable range that a reasonable finder of fact could have found.

Okay, so the trial judge was not reasonable in finding 0% but 10% is reasonable? That’s goofy and it flies in the fact of the court’s understanding that this is not an exact science. But the court found that plaintiffs’ own expert believed that the plaintiff had “probably been lulled into inattention” and seemed to anchor its opinion on this fact and the fact that plaintiff could have seen what was in front of her had she been looking.

With our contributory negligence rule in Maryland, this same holding would be that plaintiff cannot recover as a matter of law in this type of slip and fall case.

You can find the full opinion here.